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Family Law

The legal aspects of moving out

One way or the other, separating spouses must settle the question of what to do with respect to their shared residence. Living arrangements can be a tricky issue to sort out - the spouses may decide to continue living together for a time, or agree that one of them will find another place to live, temporarily or not.

But which one will move out if they disagree? Who gets to decide? Who will be allowed to live in the family home?

In this Infosheet, Éducaloi answers the most frequently asked questions about what happens to the shared residence when spouses separate.

Where will I sleep tonight?

If the separation occurs suddenly, or one or both of the spouses will likely not have time to prepare for the departure. At this point, regardless of your legal status in relation to the residence, it will help to act with good will toward your ex-partner and avoid increasing the tension between you. A negotiated solution stands a better chance of working than a situation where one spouse tries to make life difficult for the other one. Remember that any solution at this point is temporary, and that a more permanent one will be found later on.

The court can settle the residence issue fairly quickly if you disagree, but not on the eve of the separation. Be patient; a solution will be found soon, either by agreement between the two of you or by court intervention.

If children are involved, the issues of the residence and the children are closely linked. In fact, if the parents agree on who is to have custody of the children when they separate, it is only logical for the custodial parent to remain in the residence. Children will generally be quite upset by their parents’ separation and a move may simply add to the trauma. It is therefore better to settle child custody before discussing who stays in the residence. And remember that any decision must be made with the children’s best interest in mind.

I don’t know where to go. I have no resources and I need help. What should I do?

Several organizations provide services to people experiencing family or personal problems. Contact any C.L.S.C. for information about the organization closest to you or available services best suited to your needs.

Shelters for battered women or women in difficult circumstances are located in every region of Quebec. There are also shelters for men, but not as many. You can stay for a couple of days, or sometimes up to one month. Some shelters will take parents with children. They can also provide a roof, bed, food, psychological services, references and support to help you get off to a good start following your separation.

You can also ask friends and family to help you, particularly in providing you with a place to stay.

How do I get the personal belongings I left behind in the residence?

Once again, you should demonstrate good will and avoid adding to the tension between the two of you. An arrangement between the spouses is always the best solution. In situations of family violence where charges have been laid, the victim spouse can ask for a police escort when entering the residence. Some police services can provide an escort even if no charges have been laid. To learn more, see our Côtécour section on the Court of Quebec, Criminal and Penal Division.

Who pays the costs related to the residence, the insurance, etc.?

As a general rule, the spouse who owns the house or signed the lease must pay the hypothec (mortgage) or the rent, as well as the home insurance and the taxes. In theory, these expenses should be split 50-50 if you and your spouse are co-owners, even if you are no longer actually living in the residence.

You have no choice but to pay the rent yourself if your ex-spouse signed the lease where you live and is no longer paying the rent. If you don’t, the landlord can have the lease cancelled, even if your spouse was the only one to sign the lease.

To learn more on this subject, consult the Infosheet entitled Paying the rent.

The response is the same as above if you are a co-owner or your spouse is the sole owner of the house and stops making the mortgage payments. The bank is entitled to seize the house and resell it if the payments are not made. But you can always ask the court to order your spouse to reimburse the amounts you had to pay on his behalf. You can also obtain an interim judgment ordering your spouse to pay the rent or mortgage payments.

The basic rule is to do what is needed to avoid losing a major asset or ruining your credit.

The spouses can agree that overpayments be reimbursed, or a provisional judgment can be issued to this effect, provided you can prove the expenses. Evidence in the form of bills, bank statements, receipts and photocopies of your cheques should be kept and can be provided as proof of payment.

If you are neither married nor in a civil union and want to learn more, consult the Infosheet entitled De facto spouses and undivided co-ownership.

I keep hearing the term "family residence". What exactly does this mean?

The "family residence" is the place the members of the family live while carrying on their principal activities. For example, a cottage is rarely considered a family residence because the spouses and their children do not live there during the week.

The place where a couple lives can be considered their family residence even if they do not have children.

A family residence can be a house, a condo, a rented dwelling, etc.

What are the consequences of registering a declaration of family residence?

Registering a declaration of family residence for a house means that where only one spouse owns the house, that spouse cannot mortgage, sell or rent it without the other spouse’s consent or agreement. It does not make the other spouse a co-owner. In short, a declaration of family residence is a protective measure that grants no rights of ownership.

In the case of a rented dwelling, the effect of a declaration of family residence is that the spouse who signed the lease cannot cancel or transfer the lease or sublet the dwelling without the other spouse’s consent.

What does it mean to say the house forms part of the "family patrimony"?

The family’s main residence forms part of something called the "family patrimony". The patrimony is made up of several assets, including the residence (regardless of whether it is owned by one or both spouses), provided the owner spouse did not inherit or receive the house as a gift.

The family patrimony is divided when the spouses separate, get divorced, or dissolve their civil union, as well as when the marriage or civil union is annulled, or when one of the spouses dies.

In reality, the market value of the residence minus any related debts (the net value, in other words) is divided, not the residence itself. As a general rule, the market value and the value of the debts are established as of the date procedures were first filed.

The actual division occurs between the ex-spouses once these calculations have been made. The division can be settled by paying a sum of money or by transferring assets.

What happens if one of the spouses refuses to leave the residence after they separate, or keeps coming back?

It all depends on the circumstances. First of all, the residence where the spouses live is their "family residence" if they are married. The court can issue an order giving one of the spouses the use of the family residence. If there is no such judgment, the residence remains both spouses’ home: they are both legally entitled to access the residence, regardless of who rents or owns it. The situation may differ if one of the spouses threatens the other’s security, in which case the threatened spouse can leave the residence or ask the police to remove the threatening spouse.

The concept of "family residence" does not apply if the spouses are not married. It is therefore entirely up to the spouse who owns or rents the lodging to decide who can enter. Under the law, the other spouse is simply considered a guest. The owning or renting spouse can withdraw the invitation at any time and ask the police to remove the “intruding” spouse, particularly if the spouse is threatening or violent. The renting or owning spouse must exercise this right reasonably where the spouse behaves correctly. In fact, the police will tend not to intervene if the removal is abusive - for example, if a spouse is kicking the other out on Christmas Eve after they have lived together peacefully for many years.

Still, the spouse is committing an offence if he returns without permission once the invitation has been withdrawn, or forces the door open. To learn more, consult the Infosheet entitled Offences against the home.

Both spouses are entitled to remain if they both own or rent the residence. The situation may differ if one of the spouses threatens the other’s security, in which case the threatened spouse can leave the residence or ask the police to remove the threatening spouse.

Certain behaviour, such as spying on the other spouse, continuously calling him or insisting on visiting the residence, may be considered an offence (ex: harassment or intimidation) even if the person owns or rents the dwelling in question. To learn more, consult the Infosheet on Offences against the person. It is best to be patient, to warn the other spouse and get his consent before entering the residence, regardless of your legal position.

You may find your situation frustrating, but remember that you're not allowed to simply take the law into your own hands. It's best to use the existing legal procedures open to you if, for example, you want access to your children or use of the residence. To learn more, see the Infosheet entitled Instituting legal proceedings.

Finally, the situation is totally different if one of the spouses is prohibited by a condition of release from going to the other spouse’s residence – and this is regardless of the spouses’ marital or civil union status. To learn more, see the Infosheets entitled Conditional release and Police and legal intervention in cases of family violence, as well our Côtécour section on the Court of Quebec, Criminal and Penal Division.